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Saturday, 31 July 2010

On 31st July 2010 the Dubai-based Gulf News reported that famous Lebanese singer, Fairouz, was embroiled in a dispute over song royalties. The iconic singer, who sang songs of justice, freedom and love, has given hope to many Lebanese during their 15 year civil war.(Ref: Gulf News, 31st July 2010. Fight over royalties could silence Fairouz forever.)

Most of Fairouz's songs were penned by her late husband, Assi Rahbani, and his brother Mansour, together known as "The Rahbani Brothers," and now her nephews are accusing her of not asking their permission to sing that repertoire or paying them the necessary royalties.

Assi died in 1986 and when Mansour passed away in January 2009, the long simmering family dispute boiled over.

This summer, Fairouz had planned to perform at the Casino du Liban Yaish Ya'ish (Long Live, Long Live), a 1970 musical written by the Rahbani brothers. But her nephews sent a letter to the Casino's administration reminding them that such a performance would require the approval of the heirs.

Mansour's sons — Marwan, Ghadi and Osama — decline to say how much money is owed, but they are demanding remuneration for each time the diva performs songs or any of the musical plays from the Rahbani repertoire.

"All what we are asking for is our intellectual property rights and this is something we will not give up" Osama, also a musician, told the AP.

To get an idea of the type of songs that Fairouz sang, here is a video of her song, Sanarj3ou Yawman. The English subtitles are grammatically correct.

The Rahbani family is known as a musical family. In 2000, Fairouz's son, Ziyad Rahbani, was described as "currently, perhaps, the Arab world's most luminous musician" by Egypt-based Al-Ahram weekly news portal. (Source: Al-Ahram Weekly Online, 10-16 August 2000. Levantine contradictions.)

Completely reworking old favourites from the Fairouz repertoire (composed by his father, the late Assi Rahbani, and written by his uncle Mansour), Ziyad also offered more recent features of his own ... The concert was attended by no less than 12,000 seasoned and other listeners longing for contact with the singing phenomenon and Lebanese and Arab icon. Fairouz's status, in fact, is comparable only to Umm Kulthoum's, except that the former celebrity has lived through the Lebanese civil war, and frequently played a national role through her concerts and songs. "Ziyad gave voice, in these Rahbani tunes, to aspects that were latent or secret," Wazin wrote in the London-based daily, Al-Hayat (6 August).

(Source: ibid.)
A more recent piece at Al-Ahram, penned in 2010, pays tribute to Ziad Rahbani, the son of songstress Fairouz and her late husband Assi Rahbani. (Ref: Al-Ahram Weekly Online, 18-24 March 2010.And all that jazz.)

Song royalties are often a matter of dispute, as composers (or, in this case, children of composers) demand what is rightfully due to them. Even though songs are intangible objects, they often evoke very real emotional responses. Composers, too, feel that these songs are their creations, and would like to benefit when others perform or air their songs. Similarly, recording artistes feel that their recordings should be recognised and some degree of remuneration given to them. Indeed, copyright can give rise to a continual stream of income.

In many jurisdictions in the world, there are bodies set up and authorised to collect song royalties. These copyright royalties will then be disbursed to the songwriters and the performers. Going back to the case of Fairouz, her daughter had made a comment that said, essentially, her cousins should claim their royalties from the body that collects royalties.

Rima Rahbani, a director and the daughter of Fairouz and Assi, accused the heirs of greed and said there was no formal system of direct payments to the brothers from Fairouz herself.

In a telephone interview with The AP, she said Mansour's heirs should collect their money from Sacem, a Paris-based organisation whose job is to collect royalty payments and redistribute them to the original authors. Mansour had joined Sacem in 1963.

"Sacem should collect the fees from the producers, not from Fairouz, and after the performances are made, not before," she said.

"Name one artist in the world who has to ask the permission of the heirs when they want to sing songs that were written for them," she said.

Whether or not an artiste has to seek permission to perform songs written for them, is perhaps another issue altogether. This is clearly not an issue of the right to perform but the right to collect royalties.

In Malaysia, the Borneo Post has been encouraging Dayak songwriters, composers and performers to take positive steps so that they can collect their song royalties.

In Malaysia, once the music is recorded, it is protected by the Copyright Act of 1987. But to benefit from it the owner of the copyright material must be a member of Music Authors Copyright Protection Bhd (MACP). All song writers and lyricists must be members of this organisation to get any form of benefit from the royalty collected by MACP.

There are only a few Dayak songwriters and lyricists who are members of MACP. Some of our leading artistes/songwriters are not members. Maybe they don’t care. Or maybe they do not realise how much they have lost from unclaimed royalty.

A song written and recorded now may earn the copyright owner a small amount, but it can add up to a substantial amount over the years. Add to that, no one can predict what would happen 30 years from now. Just look at those Malay songs from the 60’s. Many are still popular and got re-recorded and aired over TV and radios. Our copyright law gives protection up to 50 years after the death of the owner.

On 6th July, 2010, an Australian court ruled that the Australian band, Men At Work, had copied a flute riff from a children's song and incorporated it illegally in their hit song, "Down Under". The court ordered the band to pay 5% of their song royalties to the publisher of the children's song. The publisher, Larrikin Music, had originally sought 60% of the song's royalties. (Ref: The Star, 6th July 2010. Band penalized for copied riff in "Down Under" hit.)

An article by Tan Sri Sulaiman Mahbob also lamented that the late Tan Sri P. Ramli could have become a very rich man simply by collecting royalties or fees for airing his movies or performing his songs. Unfortunately the late Tan Sri P Ramli did not benefit from today's consciousness that respects intellectual property. (Ref: The Star, 19th April 2010. Intellectual capital as source of wealth.)

Copyright royalties have also been cited as a burden to some business operators. In Sibu, hotel operators specially requested that their television royalties be lowered, in compassionate view of the economic recession. (Ref: The Star, 19th March 2010. Hotels want lower television royalties.) Now we know why some hotels have disabled the radio console -- to avoid paying radio royalties on top of television royalties.

An article about songwriting duos noted that Paul McCartney and John Lennon had come up with a solution to the royalty problem: They would both be credited as songwriters of any song they wrote so that both would equally enjoy the royalties. (Source: New Straits Times, 14th June 2009. They come in pairs.)

For further reading, here is an article about "How Do Songs Make Money?" at the website of a radio show, I Write The Songs: click for link.

We end this article with the music video for Men At Work's Down Under. Bear in mind that the flute riff has been inspired by -- or lifted from, depending on how you look at it -- a children's song.

In May 2010, Wall Street Journal reported that scientists at the J Craig Venter Institute had created the first synthetic organism. (Ref: WSJ, 21st May 2010. Scientists Create Synthetic Organism.) Here is an excerpt.

Heralding a potential new era in biology, scientists for the first time have created a synthetic cell, completely controlled by man-made genetic instructions, researchers at the private J. Craig Venter Institute announced Thursday.

"We call it the first synthetic cell," said genomics pioneer Craig Venter, who oversaw the project. "These are very much real cells."

Created at a cost of $40 million, this experimental one-cell organism, which can reproduce, opens the way to the manipulation of life on a previously unattainable scale, several researchers and ethics experts said. Scientists have been altering DNA piecemeal for a generation, producing a menagerie of genetically engineered plants and animals. But the ability to craft an entire organism offers a new power over life, they said.

Its genome is entirely synthetic. It has vast commercial potential. However, moral issues of "Playing God" have always plagued society, as early as the cloning case of Dolly the Sheep. There is no doubt that Dr Venter knows the "moral and ethical debates about whether it is right to manipulate life forms—which arose with the advent of cloning, stem-cell technology and genetic engineering". (Ref: ibid.)

Dr Venter intends to patent the experimental synthetic life form on the basis that "They are pretty clearly human inventions". The WSJ article clearly states how the synthetic lifeform was created:

To make the synthetic cell, a team of 25 researchers at labs in Rockville, Md., and San Diego, led by bioengineer Daniel Gibson and Mr. Venter, essentially turned computer code into a new life form. They started with a species of bacteria called Mycoplasma capricolum and, by replacing its genome with one they wrote themselves, turned it into a customized variant of a second existing species, called Mycoplasma mycoides, they reported.

To begin, they wrote out the creature's entire genetic code as a digital computer file, documenting more than one million base pairs of DNA in a biochemical alphabet of adenine, cytosine, guanine and thymine. They edited that file, adding new code, and then sent that electronic data to a DNA sequencing company called Blue Heron Bio in Bothell, Wash., where it was transformed into hundreds of small pieces of chemical DNA, they reported.

To assemble the strips of DNA, the researchers said they took advantage of the natural capacities of yeast and other bacteria to meld genes and chromosomes in order to stitch those short sequences into ever-longer fragments until they had assembled the complete genome, as the entire set of an organism's genetic instructions is called.

They transplanted that master set of genes into an emptied cell, where it converted the cell into a different species.

Friday, 30 July 2010

Who hasn't heard of Alexander Graham Bell? He is widely credited as the inventor of the telephone. However, if that is what you know, then you don't know enough about the telephone.

In June 2002, The Guardian reported that the US Congress had recognised that a poor immigrant from Florentine, Italy, was the true inventor of the telephone, and not Alexander Graham Bell as previously thought. (Ref: The Guardian, 11th June 2002. Bell did not invent telephone, US rules.) The media in Italy hailed the recognition which had been long overdue. The Italian media also went on to describe Alexander Graham Bell as a Scotsman who became rich by stealing the ideas of others. Here is an excerpt from the article:

Bell's immortalisation in books and films has rankled with generations of Italians who know Meucci's story. Born in 1808, he studied design and mechanical engineering at the Academy of Fine Arts in Florence, and as a stage technician at the city's Teatro della Pergola developed a primitive system to help colleagues communicate.

In the 1830s he moved to Cuba and, ... found that sounds could travel by electrical impulses through copper wire. Sensing potential, he moved to Staten Island, near New York City, in 1850 to develop the technology. ...

In between giving shelter to political exiles, Meucci struggled to find financial backing, failed to master English and was severely burned in an accident aboard a steamship.

Forced to make new prototype telephones after Ester sold his machines for $6 to a secondhand shop, his models became more sophisticated. An inductor formed around an iron core in the shape of a cylinder ... was used decades later for long-distance connections.

Meucci could not afford the $250 needed for a definitive patent for his "talking telegraph" so in 1871 filed a one-year renewable notice of an impending patent. Three years later he could not even afford the $10 to renew it.

He sent a model and technical details to the Western Union telegraph company but failed to win a meeting with executives. When he asked for his materials to be returned, in 1874, he was told they had been lost. Two years later Bell, who shared a laboratory with Meucci, filed a patent for a telephone, became a celebrity and made a lucrative deal with Western Union.

Meucci sued and was nearing victory - the supreme court agreed to hear the case and fraud charges were initiated against Bell - when the Florentine died in 1889. The legal action died with him.

Sadly we must note that Meucci did not benefit from his invention during his lifetime. He seems to have had a string of bad luck: he failed to master the English language and suffered burns from an accident. Further, he not have the money to file the patent. Finally, he did not succeed in his court action against Mr Alexander Graham Bell. This was not due to any other factor than his death. He had a good case, but the good case perished when Mr Meucci expired.

Must this be the case for all court cases? Is it true that the death of the claimant brings with it an end of all his rights, including causes of action at court? In my opinion, his court action probably could not continue simply because of his financial situation.

Death of the Claimant: Cause of Action Survives!

For the interested reader, it must be noted that if a claimant had commenced his action in the Malaysian courts, the cause of action will survive even if he passes away. The cause of action will simply be continued by the legal representative of the estate of the deceased. This may be either the Administrator (of an intestate person) or his Executor (of a person who died leaving a will).

Here is an excerpt from a law article, Death of the Claimant and the Survival of Action for Dismissal without Just Cause or Excuse, by Dr Ashgar Ali Mohamad [2007] 2 MLJ lxxvii. (MLJ stands for Malayan Law Journal)

The estate of the deceased — the executor or administrator of the deceased plaintiff — may obtain an order of the court to carry on the proceedings for damages for wrongful dismissal under O 15 r 7(2) of the Rules of the High Court 1980 or O 8 r 7(2) of the Subordinate Courts Rules 1980. For example, O 15 r 7(1) of the Rules of the High Court 1980 provides; 'Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy'. Further, O 15 r 9(1) provides that if the plaintiff's personal representative does not apply for an order making them parties, the defendant may apply for an order that unless the action is proceeded within such time as may be specified in the order, the action be struck off.

Also, the Civil Law Act 1956 has a provision on this point. Section 8 deals with the effect of death on the cause of action. Section 7 deals with claims by dependants of a deceased person against the party causing the death of the deceased. Here is section 8 of the Civil Law Act 1956 reproduced in full.

8. Effect of death on certain causes of action

Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery.

Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—

shall not include any exemplary damages, any damages for bereavement made under subsection 7(3a), any damages for loss of expectation of life and any damages for loss of earnings in respect of any period after that person's death;

in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; and

where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless proceedings against him in respect of that cause of action either—

were pending at the date of his death; or

are taken not later than six months after his personal representative took out representation.

Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this section, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

The rights conferred by this section for the benefit of the estate of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by section 7 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said section as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust.

Further Reading For interested readers, the following links may prove to be useful.

Washington Post, 26th February 2005. Accomplished, Frustrated Inventor Dies. (Mr Robert Kearns was the inventor of the intermittent windshield wiper. His design was misappropriated by carmakers and he died frustrated, fighting to get his patent rights recognised.)